I consider Marty Lederman to be the best--and most scrupulous--constitutional lawyer in the country, which means that I take everything he says with the utmost seriousness. In the thread on John Yoo, he suggests (responding to a comment by me) that "creative" lawyers should be candid about their straying from the relatively unimaginative straight and narrow. But I wonder to what degree any lawyers, including such admirable lawyers as those who served with Marty in the in the Office of Legal Counsel that he graced with his service between 1994-2002, are entirely candid with regard to the "creativity" of their arguments. Don't lawyers always claim that their arguments are well-founded in traditional materials, and that any "creativity" actually represents a "deeper understanding," rather than creative transformation, of these materials? I'd be curious to know of any briefs or opinions that openly acknowledge the "creativity" of the arguments being made, at least with regard to constitutional or statutory interpretation. I assume that one can more openly acknowledge "creativity" in common law cases where one decides that the traditional rule has become dysfunctional (e.g., contributory negligence as barring any recovery at all).

Consider the government lawyers during the New Deal, with regard to federal power under the Commerce Clause. In some ways this is at the heart of the debate between Bruce Ackerman and some of his critics, such as Cass Sunstein, with regard to the New Deal. Ackerman, of course, regards the New Deal as a fundamental, and therefore highly "creative," transformation of the American constitutonial system. Sunstein, like most New Dealers (at least in public) offers a more "restorationist" account, in which the Court returns to the correct understanding of federal power set out by John Marshall in Gibbons. Nothing "creative" there! Is there a "fact of the matter" as to which account is correct? And, if we agree with Ackerman, should New Deal lawyers have been expected to admit that they really were inventing bold new ways of conceptualizing congressional power under the Commerce Clause that affected a non-Article V amendment of our operating system (as, Marty and I would both agree, John Yoo is doing with regard to Article II and presidential power)?

I'm not a historian of law, so I can't really answer Levinson's questions directly, but this discussion reminds me of a Balkin post from a few months ago. It's a really persuasive piece and it put a lot of things in place for me when I read it--a lot of things that had been floating around in my mind for a while just "clicked" when Balkin put them into words. Here are some exerpts:

Lawyers have always... been willing to assert that, far from twisting the law, it is they, and not their opponents, who are being most true and faithful to the law... their job is to confuse, obfuscate, and make unjust and illegal things seem perfectly just and legal... lawyers have been implicated in the worst injustices in human history, arguing heatedly for them all the way... in the name of justice and the rule of law...

Given that lawyers are whores-- and I apologize in advance for the offense I may have given to prostitutes by comparing them to lawyers-- the question becomes, what restrains lawyers from being the most shameless tools of interest, or power, or both? There are two answers. First, lawyers' craft is always hemmed in by larger social forces and by popular opinions about ethics and morality, opinions which are not always articulated or articulable in precisely legal ways... If the moral opinions of a time are deeply corrupt, the law is unlikely to be far better.

Second, lawyers have developed a professional ethos... But my experience has been that professional ethos often does not constraint [sic] lawyers from serving unjust ends very much; at most, it forces them to articulate their defenses of unjust things through legal formalities. And by exercising sufficient cleverness, they are almost always able to do so...

I don't think it's at all surprising that we can find lawyers today who will defend the legality of torture or the President's plenary power to spy on American citizens... because there are people in the larger political culture who will happily argue for these practices on the merits... the law always needs help from other sources in political culture if it is to do its job appropriately. The rule of law, I would insist, is not a purely legal or professional ideal-- it is a political ideal that demands that power be checked, circumscribed and made accountable in fair and publicly knowable ways.

I hope the post helps you understand this issue as much as it helped me.

There’s an enormous difference between being a lawyer working for the OLC, as Yoo was, and working for any other department or agency of the Administration. The OLC’s role is to provide non-partisan, eminently technical analyses of the current *state-of-the-art* regarding specific legal issues. Yoo was on a mission: to draft legal memorandums that could, from the formalistic or bureaucratic point of view, provide cover for certain acts that the Administration had told him it wanted to conduct.

There’s an enormous difference between being “creative” in your legal analysis of a specific legal issue, as Yoo alleges he was, and deliberately ignoring the cornerstone of the law, that is, reiterated judicial precedents and undisputed statutes, something which Yoo systematically did when rendering his formal opinions.

There’s an enormous difference between reinterpreting a certain portion of the Constitution that will have economic effects within your own country, as the newdealers did, and reinterpreting a part of Constitution in a manner that will offer a legal excuse for torturing, murdering, wounding, kidnapping and economically ruining hundreds of thousands (if not millions) of people in countries that aren’t yours.

Prof. Levinson, sorry, but there are too many differences between what an ordinary lawyer can do for his client and what John “Voodoo Law” Yoo has done. He’s indefensible. And he’s shameless, or how else can you describe someone who, after all of this and from his present position as a legal scholar, has the nerve to say (see the NY Times article linked in Prof. Lederman’s last post) that the Hamdan decision is a judicial usurpation of the president's power to protect the nation?

Sandy, Every good lawyer knows the difference between an excercise in advocay, versus an attempt to figure out what the law says on a given point (or to figure out what the judge(s) will decide it says). This is an essential lawyering skill for a plain reason: the lawyer who fails to heed this distinction will regularly overestimate in advance the likelihood that his or her advocacy will prove successful. Since a large part of the job of the lawyer is to make such predictions, such a lawyer will be a failure.

To offer a gross generalization, the more creative the legal argument (and in absence of some assurance that the presiding judges will be receptive to such creativity), the greater the likelihood that it will fail.

Although it might be too much to ask of Yoo to admit that his positions were "creative," at the very least he should have indicated to superiors that it was a stretch given existing legal doctrines, although he might have added that a few of the justices were likely to be receptive to it nonetheless. That would have been good lawyering.

If he genuinely thought his arguments were legally correct, or would be supported by a majority of the Justices, this is reason to doubt his skills as a lawyer, and as a court prognisticator.

This is entirely aside from another important point, however: the charge of the OLC is to figure out what the law says. Yoo failed this particular task because that is not what he undertook.

Brian, as always, raises an important point, but I think that the crux of the argument involves what is meant by "success." Brian assumes that "success" means winning the case, which, of course, it often does. But major consider the possibility that the purpose of an OLC opinion is, in effect, to legitimize a range of action within the Executive Branch,in the short run, coupled with the willingness to await litigation. As to the latter, there are itself a number of possibilities: First, the opinion might involve an area that courts view as non-justiciable, either overtly or as a matter. This is often the case, of course, with regard to the presidency and foreign affairs. Second, one may believe, altogether accurately, that there are some judges who will be receptive to the arguments. Not at all coincidentally, these will be judges appointed by the Administration in power precisely in order to stock with bench with such people. (Can you spell Samuel Alito?) Obviously, there can be a lag at the Supreme Court because, say, 86-year-old Justice Stevens refuses to quit, but it is a reasonable bet that membership on the Court will change by the time that the case actually wends its way up to Washington. And, finally, there is the ultimate cynicism that even a "loss" at the Supreme Court level can be turned into a "win" in the "court of public opinion," as with, say, a Supreme Court decision properly finding that "under God" in the Pledge of Allegiance is unconstitutional.

In his long recent posting, Marty evokes the Lend Lease Opinion by Robert Jackson. He properly notes that at least it was public, and I agree that that is worth something. But if we agree that it represented overreaching, would any of us also agree that FDR shouldn't have done Lend Lease? There are, of course, hosts of other examples, going back (at least) to Jefferson's decision to purchase Louisiana even though he believed, rightly or wrongly, that it was unconstitutional.

There's a wonderful article by Jeannie Suk from 2002 about the relationship between creativity in the law and creativity in the arts. Suk examines the question of originality in copyright law to make the case that lawyers and artists *both* draw from tradition *and* creatively reuse materials that are already in existence to make something new. So new and old, copying and creating, are always in a kind of productive tension: “If anything, lawyers should appreciate literary rewriting because we know that applying precedent is not a mechanical act, but one that involves transformation and even originality. Lawyers know that in the production of texts, copying and originality coexist, each nourishing the other.” Suk suggests that the law and postmodern art, specifically, rely on the same model of creativity — where “borrowing is [both] inseparable from, and constitutive of, originality.” See her “Note: Originality,” Harvard Law Review 115 (May 2002), 1989-2009.